Polsen v Harrison

Supreme Court of NSW|2021-08-20|Before: Lonergan J, Beazley JA, Simpson J, Spigelman CJ, Studdert J, Hunt CJ, Barr AJ, Hoeben CJ

Judgment

The plaintiff, Ms Katrina Polsen, by Further Amended Statement of Claim filed on 18 December 2020, brings proceedings against the defendant, Dr Richard Harrison, alleging negligence and breach of contract in respect of a surgical procedure conducted on 22 July 2013 (a gastric sleeve gastrectomy), and the care afforded to the plaintiff post-operatively.
On 3 February 2021, the plaintiff directed a subpoena to produce to "Services Australia" seeking: "A copy of all records of claims made with Medicare Australia by Dr Richard Ian Harrison... from 1 July 2012 to 1 July 2014"
The same subpoena required identical production in respect of Dr Nicholas Williams in par 2 of the subpoena but this is no longer pressed by the plaintiff.
The defendant, by Notice of Motion filed on 4 May 2021, seeks an order setting aside the subpoena on the basis that it lacks a legitimate forensic purpose and that the documents sought have no relevance to the issues in the proceedings.
The plaintiff asserts that the documents sought would shed light on the veracity or otherwise of assertions made in pars 5 and 8 of his evidentiary statement dated 20 November 2020.
For the reasons that follow, I order that the subpoena be set aside with costs.

Relevant principles - Legitimate Forensic Purpose

Plaintiff's submissions and the asserted legitimate forensic purpose

Ms Hillier submitted that the documents sought arose from an entitlement to test whether or not: 1. Dr Harrison was in fact, at the time of Ms Polsen's surgery (22 July 2013) actually "performing a wide range of bariatric procedures as well as revision surgery"; and 2. Dr Harrison made claims on Medicare regarding the plaintiff.
Ms Hillier submitted that these "issues" arose from what Dr Harrison asserted in his written statement at pars 5, 8 and 29: "[5] I am the principal of the largest non-metropolitan bariatric practice in Australia. The bariatric practice has evolved since commencing in 2003 and is an accredited unit with the Cancer Institute of NSW to perform resection of major upper GI malignancy. This involves a wide range of primary bariatric procedures as well as revisional operations in and around the lower oesophagus, hiatus and proximal stomach. … [8] My bariatric practice involves a two-year programme of consultations with my multidisciplinary team to support patients on their weight loss journey. The cost of the two-year programme is included in the quote given to prospective patients, meaning that they pay no additional out of pocket expenses for this period. This program means that there is no financial barrier to patients returning for follow up care after surgery. … [29] I explained what our program involves with words to the following effect - We start with pre-operative education to help you prepare for surgery and understand what to expect once you have had the procedure. After the surgery, we offer a two year program where my team and I will look after you with no out of pocket expenses. If you have a health fund then you will have no gaps. If you have no health fund, we will bulk bill you. And if you have a complication, our team will look after you if you land in hospital either at Calvary or at the Base. Routine follow up after surgery involves the team seeing you in hospital after the surgery. After discharge, we are available on the phone as needed and you will have your first post-operative appointed at one month. You will be seen on a three monthly basis for the first year and then six monthly in the second year. You will have regular blood tests to monitor you over this period. We can see you annually or as required thereafter. After the two years we encourage you to stay involved with the practice and to contact the team if there are any problems."
Ms Hillier submitted that this means that the question of the truth or otherwise of these assertions, is "on the cards" at the trial.

Defendant's submissions

Mr Hutchings submitted that the approach of the plaintiff is entirely misconceived. It is evident par 5 is an introductory paragraph that sets out the nature and extent of the growth of the practice since 2003. There is nothing at all that confines itself to what Dr Harrison personally was doing in July 2013.
The second aspect, that Ms Hillier argued arises from par 8 of Dr Harrison's statement, is also misconceived. Dr Harrison did not say he made no claims on Medicare, he simply outlined the approach in respect of the normal course for patients in the first two years of their treatment.
In respect of par 29 of the statement, Dr Harrison stated that Medicare bills will arise in the context of being bulk billed. Again, there is no assertion that Medicare will not be charged; quite the opposite.
There is quite an obvious lack of apparent relevance, even applying a low bar for relevance.

Decision

The subpoena is misconceived. It appears to arise from a mistaken interpretation of background matters referred to in the statement of Dr Harrison.
Even if the documents sought were confined to production of records only in relation to the plaintiff, it still is not directed to any issue for consideration or determination in the proceedings.
The case made by the plaintiff is that Dr Harrison failed to competently perform gastric sleeve surgery in July 2013 and failed to adequately treat her post operative complications in a timely manner.
What surgeries he performed on others between July 2012 and 2014 is not an issue for determination in this trial, nor is whether Medicare made payments in respect of such surgery.
There is no legitimate forensic purpose articulated. There is no apparent relevance to the documents sought.

Costs

Costs follow the event. The plaintiff pressed for par 1 of the subpoena to be answered. The arguments stated for that position failed. The plaintiff is to pay the defendant's costs of the motion.

Orders

I make the following orders: 1. The subpoena to produce filed on 3 February 2021 directed to Services Australia is set aside. 2. The plaintiff is to pay the defendant's costs of the Notice of Motion filed on 4 May 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2021

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